IPBiz

Saturday, January 31, 2009

In SÜD-CHEMIE, INC. v. MULTISORB TECHNOLOGIES, INC., the CAFC vacated and remanded a district court finding of obviousness on summary judgment.

The CAFC noted:

However, in concluding that Komatsu teaches the use of compatible polymeric materials, the district court failed to acknowledge that the specified classes of materials comprise a large number of substances with quite different properties, and that various combinations of those materials can be compatible or incompatible depending on how they are assembled in layers to form the container. (...)

Thus, “compatible” materials have similar melting or softening temperatures, while incompatible materials have dissimilar softening points. The district court reasoned that “[t]he Komatsu patent does not identify the inner surfaces of the films as comprised of compatible polymeric materials, but that does not mean[] that they are not.” However, the Komatsu specification does identify the relative softening points of the various polymeric films that constitute the package material, and an analysis of those softening points indicates that Komatsu teaches the use of incompatible materials for the inner surfaces of the containers, whereas the ’942 patent requires the use of compatible materials for those surfaces.

(...)

Claim 1 of the ’942 patent requires that the inner surface of the laminate film be compatible with the inner surface of the microporous film—that is, the softening points of those two layers must be consistent. In contrast, Komatsu teaches that the microporous film and the inner laminate films should have quite different softening points; Komatsu explains that the softening point of the microporous film should preferably be at least 20°C higher than that of the inner laminate film.

(...)

However, Multisorb ignores the fact that while the ’942 patent requires the inner surfaces of the laminate and microporous films to have similar softening points, Komatsu requires the films to have dissimilar softening points. Komatsu thus does not teach the use of a microporous film that is compatible with the inner surface of the laminate film.

Copying is mentioned as a secondary consideration:

Süd-Chemie contends that secondary considerations, including unexpected results, copying, and commercial success indicate that the invention of the ’942 patent would not have been obvious to a person of skill in the art.

Süd-Chemie focuses in particular on the evidence of unexpected results. In that regard, Süd-Chemie argues that a person of skill in the art would not have expected uncoated laminate and microporous films to form stronger bonds than adhesive-coated films.

One needs evidence of unexpected results:

Multisorb is correct that conclusory statements in a patent’s specification cannot constitute evidence of unexpected results in the absence of factual support. See In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995). However, the ’942 patent provides evidence pertaining to the allegedly unexpected advantages of uncoated over coated films beyond its mere declaration that the results were surprising. (...) The specification therefore contains specific evidence pertinent to Süd- Chemie’s contention that the use of uncoated films yields advantages over more conventional combinations

Showing a degree of reciprocity, Pamela Freeman, director of the office of student ethics and anti-harassment at Indiana University-Bloomington is quoted: "I'm sure it's completely inadvertent."

One recalls that SIU's defense of plagiarism by its President, Glenn Poshard, was "inadvertent plagiarism."

Hollywood script-writers could not do better than this story, a reprise of the Gang that Couldn't Shoot Straight.

Rationalizations abound: "We think this is a non-story," said David West, director of government and media relations for Southern Illinois. "It hasn't become official yet. If there's a problem with the draft, we will correct it."

"The concept of a six-word summary of anything is catchy and popular, but it is not protectable by any of the intellectual property regimes," said McGill law professor Richard Gold, an intellectual property expert who was unaware of his university's dispute with Mr. Smith before he was contacted by the National Post.

"There is really no statutory mechanism to protect it, and for good reason. The first person to come up with the idea of having a restaurant can't prevent everyone else from opening a restaurant. We thrive on people copying ideas."

IPBiz notes the similarity to Harvard Business Review's "plagiarize with pride."

Arthur M. “Lain” Adkins, who serves as director of the University Press, told the Chronicle that R. Gerald Nelms, a recognized plagiarism expert and associate professor of English at SIUC, “most likely” wrote SIU’s version.

IPBiz notes the irony in a putative "recognized expert" on plagiarism plagiarizing a definition of plagiarism.

Stolen Words: Forays into the Origins and Ravages of Plagiarism, Thomas Mallon. Fascinating stuff. As with kleptomaniacs, the thieves don't need what the take, and often leave clues suggesting they want to be caught. E. B. White divided plagiarists into thief, dope and total recall guy. The University of Oregon plagiarized Stanford University's handbook on plagiarism. Mary Chesnut, the Civil War diarist, blew the whistle on the Reade/Reybaud cheat, but doctored her own diaries and put her thoughts into others' mouths. Joe Bide plagiarized from Neil Kinnock, R.F. Kennedy and Steinbeck. J.F. Kennedy and Theodore Sorenson stole from O.W. Holmes, who had already been robbed by Harding. This 1990s book was too early for the outrages of Stephen Ambrose and Doris Kearns Goodwin ...

One surmises that SIU falls into the dope category.Biden's plagiarism at Syracuse Law might be a different category.

Microsoft has charged former employee Miki Mullor with breach of contract, fraud, misappropriation of trade secrets and unjust enrichment related to Mullor's alleged theft of confidential documents unrelated to his job about technology that Microsoft offers to computer makers. The information in question allows end users to forego the Windows operating system activation process on PCs that come preloaded with the Windows software.

While Mullor was employed by Microsoft, Mullor's company, Ancora, filed a patent infringement suit accusing customers of Microsoft of infringing on a patent related to this technology. The customers were Dell, Hewlett-Packard and Toshiba, but because the technology in question was provided by Microsoft, the PC makers asked Microsoft to defend them against the claims.

I am the inventor of U.S. Patent No. 6,411,941 relating to software anti-piracy technology, and Ancora is my company. I applied for my patent in 1998. In 2002, the patent issued from the United States Patent and Trademark Office. In 2003, I approached Microsoft and had several discussions with a Microsoft lawyer and employees of Microsoft's Anti Piracy group about my invention and the benefits Microsoft could realize by using it. Microsoft declined and said they had no interest in my invention...

We ceased business operations at Ancora in 2005, and Microsoft was the first company to extend me an employment offer. I accepted... When I joined Microsoft, I notified them in writing of Ancora and my patent in both my resume and in my employment agreement. In its complaint against me, Microsoft withheld the portions of these key documents that show this.

At the same time I was employed at Microsoft, but unknown to me, Microsoft was developing what is now known as "OEM Activation." OEM Activation is installed on computers made by HP, Dell, Toshiba and others ... to prevent piracy of Microsoft's Windows Vista software installed on those computers. This work was being done in a different department at Microsoft. OEM Activation is a blatant copy of my invention...

In June 2008, my company Ancora filed a patent infringement lawsuit against HP, Dell and Toshiba in the federal court in Los Angeles. Microsoft fired me for trying to protect my own invention --- an invention I told them about before they ever hired me... Recently, Microsoft filed a retaliation suit against me personally in Seattle. Microsoft accuses me of lying, deceit, fraud and misappropriation.

These are shameful, dishonest attacks on my character by Microsoft – the company that stole my idea in the first place. Their attacks are untrue, and they hurt me and my family. Microsoft basically admits stealing my idea in the complaint they filed because they are asking for a license to my patent. Microsoft would only need a license to my patent if they were infringing it in the first place. My patent case in Los Angeles has been going on for several months now with substantial progress. Clearly, Microsoft and the PC OEMs realized that they have no defense on the merits of the patent case.

**UPDATE. On 17 Nov 09, Mr. Mullor notified IPBiz that "the case between Microsoft and Mullor/Ancora has been resolved."

Wednesday, January 28, 2009

AP notes: The University of Missouri system filed a lawsuit Monday [Jan. 26] in federal court in Kansas City against chemical engineering professor Galen Suppes. The university system claims Suppes won’t release the rights to more than 30 inventions and 11 potential patents it says were developed in his Columbia campus labs. The case is Curators of the University of Missouri v. Galen J. Suppes et al [WD Mo], before Judge Scott O. Wright. The defendants are Suppes, Sutterlin, Renewable Alternatives, LLC and Homeland Technologies, LLC. Plaintiff counsel are Joshua McCaig, Richard P. Stitt, Russell S. Jones , Jr. of Shughart Thomson & Kilroy, PC

Hmm, remember when Stanford released rights (pursuant to Bayh-Dole) to Madey, and Madey later sued Duke? And Duke lost.

The ChemE prof claims that the University of Missouri has a faulty process for deciding how to waive its legal rights to inventions deemed to lack the potential to make money. Remember Rutgers, San Filippo, and due process?

Mr. Suppes told the Associated Press that he and William H. ["Rusty"] Sutterlin [who received his doctorate at Columbia and worked there as a postdoctoral fellow] had formed a company [Renewable Alternatives] to commercialize their work on fuel cells and other fuel-related technologies because he thought the university had a poor track record in pursuing patents on professors’ research. He said university officials had shown no interest in his efforts until he “informed them that royalties had been paid.”

letter, Russell Jones Jr. to Suppes: "Your continued refusal to comply with the university's requests, its rules and the rulings of the university's Patent Committee has left (us) with no choice but to pursue its rights in court."

MU Provost Brian Foster: the "lawsuit is a last resort to assure that the University’s ownership of inventions made by University employees during their employment is protected. It is vitally important to secure for the people of the state of Missouri the full benefits of research done by the University of Missouri.”

Suppes: "The university has exercised incredible neglect in the handling of invention disclosures. The MU tech transfer program is totally broken and basically beyond repair."

Scott Uhlmann, director of intellectual property administration for MU, attributes that decline to a technology transfer funding boost at the start of the decade that led to significantly more patents — and a concurrent drop in requests for waivers.

Christopher Fender, acting director of MU's Office of Technology Management and Industrial Relations, said it's in MU's best interest to help researchers bring their science to the marketplace.

Suppes is the sole inventor of US published application 20050008904 (app. 10/889448 ) titled Regenerative fuel cell technology with first claim:

A power supply for a plug-in hybrid electric vehicle consisting of a battery pack capable of providing a power output between 20 and 1000 kW, a fuel cell capable of providing a power output between 0.2 and 20 kW, a hydrogen fuel tank with a rated capacity rated in miles of travel at an average city fuel economy rating where the rated capacity in miles is equal to between 4.5 and 18 times the fuel cell maximum power rating in kW, and a control means that utilizes the power output of the battery pack to provide the high power needs of the vehicle and uses the fuel cell as a battery charger to charge the battery pack.

In a process for the production of phase change material (PCM) chemicals wherein a reactant is reacted in a reaction mixture to yield a PCM chemical, the improvement which comprises the steps of carrying out said reaction in a reactor generating a reactor output stream, cooling said reactor output stream generating a stream containing solid reactor product suspended in liquid reactor product, separating the solid product from the liquid product generating a concentrated solid product and a mostly liquid product, recirculating either the concentrated solid product or the mostly liquid product as a recirculated chemical, and reacting the recirculated chemical in a reversible reaction.

In "Non-copyists," the PatentHawk blog discusses the recent paper by Lemley and Cotropia titled: "Copying in Patent Law." While not favorable to Lemley and Cotropia, eg

It's unfortunate not knowing about patent copying only because knowing could engender even woollier thinking, and an even more theoretical paper, than Cotropia and Lemley were able to write this round. But not knowing doesn't stop the determined duo, who really want to make something of patent copying. Because without that, a paper about the topic would seem, well, senseless.

there is an interesting exchange in the comment section -->

[Babel Boy]: Speaking of idiocy: why do people keep citing Lemley? We would all be far better off if he were simply ignored. You see the sort of mess Moore's online fame has led to.

[Patent Hawk]: Whatever one may think of Mark Lemley's work product, give him credit for prolifically creating work product, much of it, at the least, thought provoking.

The response reminds IPBiz of the circumlocutions that appeared on Patent Hawk related to Lemley naming Gary Boone the inventor of the integrated circuit. See the post Did Mark Lemley name Gary Boone as the inventor of the integrated circuit? . Note that the prolific work containing that error ("Patenting Nanotechnology") thanked Chris Cotropia, Bhaven Sampat, and Michael Martin. How "thought provoking" are flagrant historical errors ?

AFP reported: TechCrunch founder Michael Arrington announced Wednesday [Jan. 28] he is taking a break from writing for his influential technology blog after being spat on at a conference and getting death threats.

Writing on techcrunch.com, Arrington, 38, said an unidentified man "walked up to me and quite deliberately spat in my face" on Tuesday at the Digital, Life, Design conference he was attending in Munich, Germany. HOWEVER, Arrington said he will attend the upcoming World Economic Forum in Davos

AFP also stated: Arrington, a former lawyer who has been cited as one of the most influential voices in Silicon Valley by several leading US publications, also said that last year, "an off balance individual threatened to kill me and my family."

The 271blog notes an SSRN paper by Lemley and Sampat titled Examiner Characteristics and the Patent Grant Rate with abstract:

In this paper, we show that there are important differences across patent examiners at the U.S. Patent and Trademark Of!ce (USPTO), and that these relate to the most important decision made by the USPTO: whether or not to grant a patent. We find that more experienced examiners, and those who systematically cite less prior art, are more likely to grant patent applications. These results are not encouraging as a matter of public policy. But they do point to human resource policies as potentially important levers in patent system reform.

The 271blog did not note Lemley's poor track record in the patent grant rate area, as shown by Lemley's reversal of his position on Robert Clarke's analysis which appeared in Lemley's rubber stamp SSRN piece, and flat-out contradicted what Lemley said in "Ending Abuse..." . Sampat was a co-author on rubber stamp, too.

Rambis Chu, a physics professor at Texas Southern University, is accused of copying a proposal written several years earlier by John Miller, a physics professor at the University of Houston. Chu's proposal was submitted to the U.S. Army Research Laboratory. Chu got tenure shortly before the alleged plagiarism was discovered.

IPBiz notes that a plotline in a Law & Order episode more than 10 years ago ("Big Bang") involved the stealing of a grant proposal (on proton lifetime). Nothing new here.

Tuesday, January 27, 2009

An AP report concludes with the sentence: For a flat fee of 1,330 Swiss francs ($1,166) companies can file a request for patent protection in any or all of the 139 countries that have subscribed to the U.N.'s Patent Cooperation Treaty, avoiding the need to make individual filings in each country.

IPBiz suggests it wise to make one's national stage filings by the 30 (or 31) month deadline, if one seeks patent protection.

The AP was otherwise talking about a decline in the rate of PCT filings: Almost 164,000 international patents [sic: applications] were filed through the World Intellectual Property Organization [WIPO] last year, about 2.4 percent more than in 2007.

During the previous three years international filings grew by an average of 9.3 percent.

Filing a patent under WIPO's treaty provides international protection of an invention from all signatory states without the need for multiple applications. [!? Filing a PCT, by itself, conveys NO PATENT PROTECTION, international or otherwise.]

TMC also noted Huawei was the top PCT filer: Huawei Technologies Co., a major telecommunications company based in Shenzhen, Guangdong Province in southern China, filed 1,737 international patent applications under WIPO's Patent Cooperation Treaty in the reporting year, followed by Japan's Panasonic Corp. with 1,729, the report said.

Monday, January 26, 2009

With a headline Pfizer CEO: Wyeth Takeover Will Be Different, BusinessWeek quickly noted:

Nevertheless, cost-cutting there will be. Pfizer expects to achieve about $4 billion in "synergies" by 2012, enabling it to reduce the combined workforce of the two companies by 15%, or some 20,000 jobs. As part of those synergies, Pfizer announced Monday [26 Jan 09] that it will eliminate 8,000 jobs, 10% of its workforce. It is closing five of its 46 manufacturing plants.

Pfizer's take-over of Pharmacia was related to the ill-fated Celebrex. Pfizer's take-over of Warner-Lambert was related to Lipitor.

***See also Duff Wilson of the NYT, For Pfizer, a Big Deal and a Test which included text:

The companies’ combined work force of 128,000 will shed 19,000 jobs. Pfizer will slash its stock dividend in half. And Pfizer is taking a $2.3 billion charge to settle a federal investigation over illegal off-label promotion of its former painkiller, Bextra.

Investors celebrated Mr. Kindler’s big day by sending Pfizer’s stock down more than 10 percent.

Michael Schultz of Message Infusion, LLC emailed, noting that the New York Law School and its Center for Patent Innovations (people behind Peer-to-Patent along with the USPTO) have just launched a new initiative with a focus similar to that of Article One.

Michael noted that Patently-O had written about this, which LBE already knew.

The Patently-O post began: The Electronic Frontier Foundation (EFF) and Public Patent Foundation (PubPat) started the ball rolling with public interest challenges to patents via reexamination. IPBiz has written again and again about how PubPat, along with FTCR (now known as Consumer WatchDog), were completely blown out of the water on their ill-planned re-exam request of WARF's stem cell patents. PubPat's prior art was found not to be enabled, and the declarations were "conclusionary."

LBE did enjoy one comment at Patently-O: This will work about as well as Patent Busters . . . what, they went out of business because armchair searchers were tired of putting in hours worth of work for no return . . . they realized they could make more recycling cans rather than search for prior art . . .? Oh well, another (terrible) idea whose time never was. File this one under "picking up cans on Route 22" [inside Jersey joke] but not unrelated to the fate of the guy who discovered Lipitor.

Another Patently-O commenter wrote: The anticipated, and confirmed, failure to invalidate the patents was meant to rebut criticism of the quality of patent examination. Seems no one paid attention. Gee, remember that the awful Eolas patent never got invalidated, in spite of the awesome number of dollars invested by Microsoft. Further, it's easy for Quillen and Webster to talk about a 97% patent grant rate, but, on deeper inspection, that turned into pure fiction. Yes, the "patent quality" harpies do talk a lot, but no one does pay attention to the aftermath.

Of peer-to-patent, note LBE's article in the Nov. 08 IPT, which noted: In this version, the Obama plan calls for an option of a rigorous AND public peer review that would produce a “gold-plated” patent. This author has already commented on IPFrontline about a downside of “public peer review.” [See Inadvertent Argument Against Peer-to-Patent (June 28, 2007) at http://www.ipfrontline.com/depts/article.asp? id=15505&deptid=4]

***Of some relevance to WARF patents, Duncan Williams posted a comment which included the text:

The European WARF patents are basically a marketing ploy. Countries that are a member to the GATT-TRIPS prohibit patents relating to "diagnostic, therapeutic and surgical methods for the treatment of humans or animals." See Article 27. So obtaining or enforcing medical procedure patents in any GATT country is simply not worth the money it takes to obtain the patent.

A system is disclosed for converting energy from the electromagnetic quantum vacuum available at any point in the universe to usable energy in the form of heat, electricity, mechanical energy or other forms of power. By suppressing electromagnetic quantum vacuum energy at appropriate frequencies a change may be effected in the electron energy levels which will result in the emission or release of energy. Mode suppression of electromagnetic quantum vacuum radiation is known to take place in Casimir cavities. A Casimir cavity refers to any region in which electromagnetic modes are suppressed or restricted. When atoms enter into suitable micro Casimir cavities a decrease in the orbital energies of electrons in atoms will thus occur. Such energy will be captured in the claimed devices. Upon emergence form such micro Casimir cavities the atoms will be re-energized by the ambient electromagnetic quantum vacuum. In this way energy is extracted locally and replenished globally from and by the electromagnetic quantum vacuum. This process may be repeated an unlimited number of times. This process is also consistent with the conservation of energy in that all usable energy does come at the expense of the energy content of the electromagnetic quantum vacuum. Similar effects may be produced by acting upon molecular bonds. Devices are described in which gas is recycled through a multiplicity of Casimir cavities. The disclosed devices are scalable in size and energy output for applications ranging from replacements for small batteries to power plant sized generators of electricity.

On May 27, 2008, this issued as US Patent 7,379,286. The first claim states:

A system for extracting and collecting electromagnetic radiation from the ambient surroundings, comprising: (a) a supply of fluid characterized by its ability to (i) take in electromagnetic radiation from the ambient surroundings and (ii) release at least some of said energy when the fluid is caused to pass into a Casimir cavity; (b) a first arrangement configured to collect at least some of the electromagnetic radiation released by said fluid; (c) a second arrangement including means defining a given path for containing said fluid along said path; (d) a third arrangement including a Casimir cavity positioned within said given path and cooperating with said second arrangement such that said fluid is caused to pass into and out of the cavity as the fluid is contained along said given path, said Casimir cavity being positioned in sufficient communication with the ambient surroundings and with said first arrangement so as to (i) cause said fluid containing electromagnetic energy taken from the ambient surroundings to release at least some of said energy to said first arrangement when the fluid passes into said cavity and (ii) to again take in electromagnetic energy from the ambient surroundings when the fluid passes out of said cavity.

Sunday, January 25, 2009

Tobias Thornblad at intangitopia wrote: In the latest issue of Nature Biotech there is an interesting article written by Emily Waltz called Biotech’s Green Gold. The article starts by the interesting observation that more than a 100 third generation biofuel companies (so-called algae-to-fuel companies) have popped up during the last few years worldwide, but not a single commercial facility has been built. [The cite for the Waltz article is Nature Biotechnology 27, 15 - 18 (2009)]

As Bill Clinton might say, that depends on what you mean by "commercial facility."

Within the Waltz article:

Near-term technologies may allow algae to produce up to 6,000 gallons of oil per acre per year (gal/ac/yr). "If you really push the limits, then maybe 10,000 gallons per acre," says Ron Pate, a researcher at Sandia National Laboratories in Albuquerque, New Mexico. This figure could improve with advances in cultivation, species selection, breeding and genetic modification, but only to a certain extent. The laws of thermodynamics and the limits of photosynthetic efficiencies just won't allow it. "When you see 20,000 or beyond—that's total bologna," says Pate. "It isn't going to happen."

(...)

Valcent Products, a public company located in Vancouver, is experimenting with a range of algal species in enclosed bioreactors. Valcent CEO Glen Kertz says he can sell a barrel of algal oil for less than a barrel of crude oil and that his system has the potential to produce 100,000 gal/ac/yr.

"I said to him [Kertz], 'You are not doing anyone any favors by making absurd claims'," says Scripps' Mayfield. "That is five times the theoretical maximum energy from sunlight landing on an acre. It's physically impossible to do that." No outside experts have been allowed to validate the system yet, according to Kertz.

Of GreenFuel Technologies:

De Beers Fuel based its claims, in part, on an obsolete bioreactor it had bought from Cambridge, Massachusetts-based GreenFuel Technologies. "We were not careful about our prospective buyers," says Bob Metcalf, a partner at Polaris Venture Partners in Waltham and an investor in GreenFuel. "The South African company said they wanted to buy it for $300,000 and use it for demonstration. We stupidly agreed."

GreenFuel designs closed bioreactors that feed off industrial flue emissions and, in 2007, faced some setbacks. A pilot project failed, its bioreactors turned out to be twice as expensive as expected and the company had to fire nearly half its staff, according to Metcalf. For the failed pilot, the company had made the mistake of trying to scale-up a small test system by a factor of 100 all in one step, and it didn't work, he says. Some experts have also expressed skepticism about the oil yields GreenFuel has projected in the past, which have since been lowered, according to people familiar with the matter. GreenFuel spokespersons could not confirm the old projections.

GreenFuel faces the same challenges that most closed system operators face. Photobioreactors are more complex and more expensive than open ponds, and it's tough to make the economics work (Box 1). "Anyone working on closed photobioreactors has got a problem," says Benemann. "And there are dozens of these companies out there," he says. "Just like in agriculture, you have to keep it as simple as possible and as cheap as possible. You can't grow commodities in greenhouses and you can't grow algae in bioreactors."

Whether you wish to give away a technology free of charge or to license it, you cannot do so unless you can identify what it is that you want to transfer. You are not entitled to give away something that you do not own. IPRs provide that legal clarity and certainty. Whether that IPR bears a price is a subsequent decision. IPRs provide the framework around which legal agreements for technology transfer can be structured. Without IPRs, agreements cannot be properly defined.

Of Tim Padgett's mention of "negligible greenhouse gases," the carbon-containing molecules of the jatropha, on combustion, will yield carbon dioxide, just like other carbon-containing fuels. Also, the fuel yield per acre of various algaes is well-above that of the jatropha.

Joe Mullin's How Juror Misconceptions Affect Patent Trials notes that proof of intentional copying is not an element of patent infringement BUT THEN makes a big deal that in most patent cases "formal allegations and findings of copying are actually quite rare." Duh? [Except of course in the dreaded willful infringement cases.]

The irrelevant observation about copying leads to the conclusion: It's overwhelmingly independent developers that are getting hit with patent lawsuits.

Yes, there's a Lemley in the woodpile.

The point of the patent system is to make information publicly available [make it patent, not latent] so people don't waste resources independently developing what's already been done. The patent system can punish re-discoverers of the wheel. People that re-do old work should be given incentives to do new work.

***Lemley and Cotropia looked at about 200 recent patent infringement complaints, including cases where plaintiffs had prior business dealings with a defendant, or had trade secrets allegations along with their patent claims. They found only 11 percent contained even an allegation that the defendant had copied, either from the patent or from the plaintiff's commercial product.

CNET writes on 23 Jan 09: Rep. Adam Schiff (D-Calif.) and Rep. Darrell Issa (R-Calif.) reintroduced legislation this week that would start a 10-year pilot program to educate district judges on patent issues. Judges from courts that meet certain criteria would be able to opt into the program, which would provide funds for them to pursue educational opportunities such as patent seminars. The participating courts would also be assigned a clerk with expertise in patent law or the technical issues associated with patent cases. The bill authorizes $5 million a year to carry out the program.

The following is from a thread concerning possible patent litigation by Apple against iPhone competitors:

Here's a relevant quote from that seminal book on Interaction Design, Alan Cooper's The Inmates are Running the Asylum:

"If, as a designer, you do something really, fundamentally, blockbuster correct, everybody looks at it and says, 'Of course! What other way would there be?' This is true even if the client has been staring, empty-handed and idea-free, at the problem for months or even years without a clue about solving it.... Most really breakthrough conceptual advances are opaque in foresight and transparent in hindsight. It is incredibly hard to see breakthroughs in design. You can be trained and prepared, spend hours studying the problem, and still not see the answer. Then someone else comes along and points out a key insight, and the vision clicks into place with the natural obviousness of the wheel. If you shout the solution from the rooftops, others will say, 'Of course the wheel is round! What other shape could it possibly be?' This makes it frustratingly hard to show off good design work."

**At the top-->

During the earnings conference call [21 Jan 09], [Apple] hinted at possible legal action against Palm were the Pre to infringe on iPhone patents.

***Elsewhere, will Apple v Palm be nuclear war-->

First of all, let's just start with saying that Apple's iPhone multi-touch patent is a formality. Like most of you know, a patent is required to protect an invention from being commercially exploited by competitors. In some cases, patented technology can be used under a license agreement, and in others, the inventors might not have any interest of spreading the technology around. Apple, which is constantly growing its distribution network for the iPhone, is likely of the latter kind. Why should they license their invention to others, if they already have a successful end-user product?

As for Apple's iPhone multi-touch patent specifically, it simply describes what makes the iPhone unique. Currently, we don't know whether the upcoming Palm Pre will actually offer something that violates Apple's patent. But we all remember Palm loosing another gesture battle back in the old days, when Xerox sued Palmsource for the way Graffiti worked. Graffiti 2 was eventually rolled out, based on CIC's Jot handwriting recognition software.

Gizmodo describes the "issues" between Apple and Palm as a "nuclear war", while Engadget talks about "two large companies, each loaded up with tons of patents and pending patents". Honestly, we can't think of a single Palm patent at the time of writing that is crucial to smartphones, and if there should be a "nuclear war", we think there'll only be one winner: Apple.[from infosyncworld]

IPBiz notes that one must measure the Palm Pre against the claims of Apple's patent(s).

The patent we're referring to is #7,479,949, awarded on January 20 of this year. It has a list of 20 claims but as Prof. Wagner showed us, out of the 20, 17 are "dependent," which means they drill down more specifically into features of the invention/interface/device described in their parent claim. In our quick Patent Law 101 with Professor Wagner, we learned that to legally infringe upon a patent, you need to violate an entire independent claim, which means, if you rip off one of its dependents, you're OK, you just can't rip off all of them all together.

This, of course, is NOT TRUE. If the accused product falls within the scope of all elements of a dependent claim, THERE IS INFRINGEMENT. John Mahoney got it wrong.

The first inventor on US 7,479,949 is Steven P. Jobs. The first claim is:

A computing device, comprising: a touch screen display; one or more processors; memory; and one or more programs, wherein the one or more programs are stored in the memory and configured to be executed by the one or more processors, the one or more programs including: instructions for detecting one or more finger contacts with the touch screen display; instructions for applying one or more heuristics to the one or more finger contacts to determine a command for the device; and instructions for processing the command; wherein the one or more heuristics comprise: a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display; a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display; and a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.

Claim 11 is a method claim:

A computer-implemented method, comprising: at a computing device with a touch screen display, detecting one or more finger contacts with the touch screen display; applying one or more heuristics to the one or more finger contacts to determine a command for the device; and processing the command; wherein the one or more heuristics comprise: a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display; a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display; and a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.

***Of images of "nuclear war" and MAD, a post on CMS Watch [IBM, Microsoft, and the patent mess - how to protect yourself] uses images that were used long ago.

CMS Watch--> If you're a little guy, though, there's no way you're going to enough patents to play the M.A.D. (mutual assured destruction) game, and you can count on Microsoft litigating you out of the market if you try to violate their intellectual property in any way.

TechCentral (2005)--> The tech companies often simply pass the ball down the field, pray, and stand willing to litigate. They have also developed some practical coping methods, such as filing for as many patents as possible to create bargaining chips. Then, because the big tech companies are all in the same situation, they engage in massive cross-licensing. As an alternative, they play the old cold war game of Mutual Assured Destruction (MAD). If a company plays hardball with its patent portfolio, others will respond in kind, so it is better not to start a war.

Saturday, January 24, 2009

Within an article concerning expected job cuts that will arise if Pfizer buys out Wyeth, one finds the text:

After several years of eliminating jobs that once totaled 3,600 at that company's [Warner-Lambert's] Ann Arbor, Mich., facility, Pfizer announced its closing in January 2007. Among those put out of work was Bob Sliskovic, a scientist credited with developing Lipitor.

[Recall Pfizer bought Warner-Lambert in 2000 for $116 billion to get patent rights on Lipitor.]

Drago Sliskovic is co-inventor on US 4,735,958 [issued 5 April 1988], titled Trans-6-[2-[2-(substituted-phenyl)-3- (or 4-) heteroaryl-5-substituted-1H-pyrrol-1-yl]-ethyl]tetrahydro-4-hydroxy-2H-p yran-2-one inhibitors of cholesterol biosynthesis, which in the background of the invention notes:

High levels of blood cholesterol and blood lipids are conditions involved in the onset of arteriosclerosis. It is well known that inhibitors of HMG-CoA reductase are effective in lowering the level of blood plasma cholesterol, especially low density lipoprotein cholesterol (LDL-C), in man (cf. M. S. Brown and J. L. Goldstein, New England Journal of Medicine, 305, No. 9, 515-517 (1981). It has now been established that lowering LDL-C levels affords protection from coronary heart disease (cf. Journal of the American Medical Association, 251, No. 3, 351-374 (1984).

U.S. Pat. Nos. 3,983,140; 4,049,495 and 4,137,322 disclose the fermentative production of a natural product, now called compactin, having an inhibitory effect on cholesterol biosynthesis. Compactin has been shown to have a complex structure which includes a mevalonolactone moiety (Brown et al., J. Chem. Soc. Perkin I (1976) 1165.

Also within the Philly Inquirer article on the possible Pfizer takeover:

Sanford C. Bernstein & Co. Inc. analyst Timothy Anderson predicted that Pfizer would cut 70 percent of Wyeth's current $10 billion budget for research and development, and for marketing and administrative expenses.

He based his estimates on an eventual sale price of $65 billion.

At the Wyeth Pharmaceuticals campus in Malvern yesterday, workers, most of whom declined to give their names, said they had heard almost nothing.

"It's just wait and see," one man said as he walked from one of the two red-brick-and-glass buildings to the parking lot. "There's very little information, so there is nothing to comment on." A woman said she viewed the news as positive because it offered opportunities to innovate.

Wyeth, based in Madison, N.J., completed a 7 percent reduction in its workforce late last year. Pfizer, based in New York, employs 83,400. The company has cut 15,000 jobs since January 2007 and is in the process of cutting more.

Wednesday, January 21, 2009

InsideHigherEd reported: In her announcement [of retirement on 20 Jan 09], Blandina (Bambi) Cárdenas made no direct reference to the plagiarism allegations. “The pressures of the last several months have seriously taxed my health and well-being and impaired my ability to lead the university with the intensity and focus I believe necessary. It is time for me to move on,” she said..

The plagiarism probe will NOT continue. Much was made of the "anonymous" charges, but the existence of plagiarism can be determined from the evidence, independent of the identity or motivations of the anonymous accuser. Another academic cop-out.

Tuesday, January 20, 2009

Topics in the Santa Clara symposium on Friday, Jan. 30, 2009 are defined by the sentence: A dramatic rise in filings with the International Trade Commission for patent infringement suits, an increased prevalence of Non-Practicing Entities, and frequent use of inequitable conduct as a defense to patent infringement have significantly affected the evolution of patent law today.

The high rhetorical point on 20 Jan 09 may have come in the last minutes of Reverend Lowery's benediction:

'Lord, in the memory of all the saints who from their labors rest, and in the joy of a new beginning, we ask you to help us work for that day when black will not be asked to get in back, when brown can stick around... when the red man can get ahead, man; and when white will embrace what is right. That all those who do justice and love mercy say Amen. Say Amen'... [reference to yellow omitted]

AP noted of Lowery: The 87-year-old Methodist is considered the dean of the civil rights movement, helping lead the Montgomery bus boycotts in the 1950s and delivering a list of demands to Alabama Gov. George Wallace during the bloody Selma-Montgomery March in 1965.

God of our weary years, god of our silent tears, thou who has brought us thus far along the way, thou who has by thy might led us into the light, keep us forever in the path we pray, lest our feet stray from the places, our god, where we met thee, lest our hearts, drunk with the wine of the world, we forget thee.

We truly give thanks for the glorious experience we've shared this day.

We pray now, oh Lord, for your blessing upon thy servant Barack Obama, the 44th president of these United States, his family and his administration.

He has come to this high office at a low moment in the national, and indeed the global, fiscal climate. But because we know you got the whole world in your hands, we pray for not only our nation, but for the community of nations.

Our faith does not shrink though pressed by the flood of mortal ills.

For we know that, Lord, you are able and you're willing to work through faithful leadership to restore stability, mend our brokenness, heal our wounds and deliver us from the exploitation of the poor, of the least of these, and from favoritism toward the rich, the elite of these.

We thank you for the empowering of thy servant, our 44th president, to inspire our nation to believe that yes we can work together to achieve a more perfect union.

And while we have sown the seeds of greed -- the wind of greed and corruption -- and even as we reap the whirlwind of social and economic disruption, we seek forgiveness and we come in a spirit of unity and solidarity to commit our support to our president by our willingness to make sacrifices, to respect your creation, to turn to each other and not on each other.

And now, Lord, in the complex arena of human relations, help us to make choices on the side of love, not hate; on the side of inclusion, not exclusion; tolerance, not intolerance.

And as we leave this mountain top, help us to hold on to the spirit of fellowship and the oneness of our family. Let us take that power back to our homes, our workplaces, our churches, our temples, our mosques or wherever we seek your will.

We go now to walk together as children, pledging that we won't get weary in the difficult days ahead. We know you will not leave us alone.

With your hands of power and your heart of love, help us then, now, Lord, to work for that day when nations shall not lift up sword against nation, when tanks will be beaten into tractors, when every man and every woman shall sit under his or her own vine and fig tree and none shall be afraid, when justice will roll down like waters and righteousness as a mighty stream.

Lord, in the memory of all the saints who from their labors rest, and in the joy of a new beginning, we ask you to help us work for that day when black will not be asked to get in back, when brown can stick around . . .

. . . when yellow will be mellow . . .

. . . when the red man can get ahead, man; and when white will embrace what is right. Let all those who do justice and love mercy say Amen.

Monday, January 19, 2009

If I'm right that, as I argued on Friday, there's a cultural gap between the patent bar and the technology industry on the subject of software patents, an interesting question is how we got them in the first place. After all, it wasn't that long ago that software was widely believed to be unpatentable, and major technology firms were hardly clamoring for patent protection. Peter Mennell, a Berkeley law professor who spoke at last Wednesday's Brookings patent conference had an interesting perspective on how this came about. He argues that the impetus for software patents came from patent attorneys within major software firms who spread the "gospel of patenting" within their companies. Not surprisingly, CEOs tend to delegate patent issues to their patent lawyers, and of course patent lawyers will tend to have more pro-patent views than their bosses. And so despite the fact that few technology executives were enthusiastic about patenting, the patent lawyers who worked for them pushed their firms in that direction. And of course, once some software firms started acquiring significant numbers of patents, it sparked the arms race that we've talked about here at Techdirt.

The line --of course patent lawyers will tend to have more pro-patent views than their bosses-- surprised LBE. Registered patent attorneys tend to be more realistic about patentability than "bosses." Back during the time of the Unocal patent, LBE noted the manager responding to a patent attorney: well, patent the damned thing anyway. [See IPT]

The Patent Hawk blog has a post on an interview of Chief Judge Michel by Professor Doug Lichtman, once of the University of Chicago (now at UCLA). One needs to read the post.

Some text on patent litigators:

The attorneys don't bring us the issues, don't frame up the issues in the tribunals below, and don't present these fundamental issues to the court, particularly whether the court should rehear...

We get 150 or so [petitions] a year. Half of them are in patent cases. And most of them are extremely weak. They don't carefully assess Supreme Court case law or Federal Circuit case law. They kind of conclusory fashion, they claim a conflict between case A and case B. They look like they're just going through the motions.

I'm surprised how unimaginative, unaggressive, shallow, most of the rehearing petitions are, and that very much handicaps the court.

Michel mentioned the examiner attrition problem at the USPTO: "Turnover is huge. For every 1,000 hired, you lose 600."

Of course, Lincoln freed no slaves. That's the myth. His Emancipation Proclamation was a military measure to demoralize and destabilize the rebellious South; it covered states he did not govern but did not apply in slaveholding states that remained under his jurisdiction.

One commenter wrote:

Lincoln never recognized secession as legitimate and claimed until the end that the Union endured and that he was President of all the united states.

IPBiz notes that even Lincoln had formalisms to "re-admit" the states of the Confederacy. While more generous to those states than what would come after Lincoln's death, such plans are not consistent with the position that there was "no secession." How can one re-admit a state that never left? Further, if there was "no secession," why were not all Confederates convicted of treason? "How" the former Confederate states (and people therein) were treated was nuanced, and not necessarily self-consistent.

Pitts referenced an 1858 speech of Lincoln. One can also find interesting text in the speech better known to patent lawyers as the "fire of genius" speech. Therein, Lincoln spoke of "the invention of negroes (or our present mode of using them) in 1434." Lincoln dated the patent laws to 1624 in England.[Other word usage included greaser and fogy.]

Of interesting uses of the term "invention", David Gregory, in a weak imitation of Tim Russert's "Gotcha" overlay, put up a quote from Rahm Emanual to the effect that the untainted Republican had not been invented. Gregory, unlike Russert, had not thought the "next step" through. Rahm, unimpressive in stumbling over words during the interview, survived, and, figuratively, thought of Gregory-->

FirstPost reports: Neil Kinnock is flying to Washington today [Jan. 19] with his wife Glenys for the inauguration on Tuesday of President-elect Barack Obama as the guest of Joe Biden, the Vice President-elect

FirstPost repeats the "old saw" that the problem with Biden's use of Kinnock's speech was plagiarism. The real problem with Biden's speech is that the facts were not true:

Biden’s campaign speech included the lines: "I started thinking as I was coming over here, why is it that Joe Biden is the first in his family ever to go to a university? [Then pointing to his wife in the audience] Why is it that my wife who is sitting out there in the audience is the first in her family to ever go to college? Is it because our fathers and mothers were not bright? Is it because I'm the first Biden in a thousand generations to get a college and a graduate degree that I was smarter than the rest?"

[FirstPost did not include the "coal miner" part.]

FirstPost also did not include the famous "I'm smarter than you" line Biden used during the NH primary.

IFI Patent Intelligence, regarded as a national leader in chemistry and biology patent information, said IBM took the top spot by a relatively wide margin in 2008, but is facing increased competition from such Asian companies as Samsung and Canon.

"It's important not to confuse quantity with quality," said Darlene Slaughter, general manager of IFI. "What's clear is that many of the world's largest companies are placing a higher priority on protecting their intellectual property. ... Securing patents may be even more important in a down economy, since it gives patent-holders an edge over their competitors."

Joff Wild at IAM continues to sound the trumpet for a non-patent attorney USPTO director:

And just like the US Chamber of Commerce, what the ABA fails to do is explain why "any person selected to be Commissioner or Deputy Commissioner of Patents and Trademarks be a lawyer having experience in patent and trademark law". Surely the US patent and trademark systems are far too important to be a closed-shop in which only those who have practised IP law get to make vitally important decisions about how they should function. As I have said previously, the truth is that all Americans have a stake in the health and vitality of IP in their country. What works best for IP attorneys may not be what works best for the US as a whole. To restrict the top jobs in IP to just a section of American society would be counter-productive and could run the very real risk of excluding people with the vision and ability to bring real leadership to the USPTO at a time when IP has never been a more important business and political issue..

Of course, the "top" jobs at the USPTO are already restricted, sort of (remember the Margaret Peterlin case?). Is Joff's argument extendable to saying the surgeon general position should not be restricted to doctors?

Thursday, January 15, 2009

Boston Scientific, represented by Kenyon & Kenyon, was smoked at the CAFC on January 15: Because the court erred as a matter of law in failing to hold the ’536 patent to have been obvious, we reverse the judgment.

Of the Boston Scientific arguments:

Boston Scientific argues that KSR is irrelevant to this obviousness inquiry because Cordis urged no particular combination of references. As a secondary consideration of nonobviousness, Boston Scientific argues that Wolff and two of the other references asserted by Cordis were assigned to Medtronic, who failed to develop a drug-eluting stent before the priority date of the ’536 patent. Had it been so obvious, Boston Scientific argues, Medtronic would have made the claimed invention. Also, according to Boston Scientific, Cordis’s expert admitted to the long-felt need to deliver drugs from stents. Finally, Boston Scientific argues that Cordis’s witness stated that the success of the Cypher stent was due to the claimed polymer coating system.

The punchline:

We agree with Cordis that Wolff alone renders claim 8 of the ’536 patent obvious and therefore invalid. Because we hold the claim obvious based on Wolff alone, we do not address Cordis’s arguments for obviousness based on Domb or any other reference.

One point:

Boston Scientific argues that Wolff fails to recognize the additional non- thrombogenic benefits of a topcoat that is substantially drug-free over a topcoat that contains drug, but Wolff need not have recognized the additional benefit of one embodiment to have rendered the claim obvious. See, e.g., Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“That the [prior art] patent discloses a multitude of effective combinations does not render any particular formulation less obvious. This is especially true because the claimed composition is used for the identical purpose taught by the prior art.”); In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985) (affirming obviousness rejection of claims in light of prior art teaching that “hydrated zeolites will work” in detergent formulations, even though “the inventors selected the zeolites of the claims from among ‘thousands’ of compounds”).

Familiar text: We also agree with Cordis that the weak secondary considerations of nonobviousness do not overcome the strong prima facie showing that Wolff renders claim 8 of the ’536 patent obvious. Here Leapfrog was cited: “given the strength of the prima facie obviousness showing, the evidence on secondary considerations was inadequate to overcome a final conclusion that [the claim] would have been obvious.”

A word to the wise: We are free to override the jury’s legal conclusion on the ultimate question of obviousness without deference. See Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1324–28 (Fed. Cir. 2008). We therefore hold as a matter of law that claim 8 would have been obvious in view of Wolff.

Johnson & Johnson won another round against Boston Scientific Corp. in a long-running patent litigation over heart stents. The decision makes it more likely that Boston Scientific will have to make a $700 million payment to J&J.

Since 1997, the two companies have been locked in litigation over the popular medical devices, which are tiny scaffolds that prop open clogged arteries. J&J, which sold the first heart stents in the U.S., has patents on the basic devices and has won infringement suits against Boston Scientific.

But Boston Scientific had also won its own victories against J&J, concerning patents it holds on adding medicine to the outside of a stent to keep arteries from reclogging after a stent is implanted. Such coated stents have edged out older, bare stents.

On 14 January, MAPP released a report by Scott Shane titled “The Likely Adverse Effects of an Apportionment-Centric System of Patent Damages.”

On 15 January, the IAM blog noted:

Something worth noting is that one of the sources that Shane cites with regard to his calculations of patent value is James Bessen. The same James Bessen who co-authored Patent Failure with Michael Meurer and argued that the US patent system was, in most cases, not delivering the benefits that it was originally designed for. It is ironic that his work is being used in an argument to keep things as they are, when Bessen himself strongly believes that fundamental change is needed.

The citation appeared in the following context:

a. Conservative Methodology – Estimated Total Value of U.S. Patents Held by Public Companies Divided by the Market Value of Those Companies. We can conservatively estimate the share of the value of public companies attributed to patents by taking the estimate of the value of U.S. patents in force that are held by public companies and dividing it by the total value of U.S. public companies.

According to research by James Bessen, 45 percent of the value of U.S. patents is held by public companies.4

At the averages reported by Bessen, Barney and Putnam, this means that the total value of U.S. patents held by U.S. public companies is between $77.3 billion and $98.4 billion. On November 17, 2008, the market capitalization of the Wilshire 5000 was $9.8 trillion. Thus, using a conservative estimate, the value of patents held by U.S. public companies was between 0.8 and 1.0 percent of the value of those companies.

Shane is indicating that this is a CONSERVATIVE estimate of the value of public companies attributed to patents. The cite is to a paper by Bessen in Research Policy, not to the book Patent Failure. But Bessen and Meurer have been criticized for such a low estimate. Shane is hoisting Bessen on his own petard.

Note that in part b, Shane writes Some sources attribute a much greater share of the value of public companies to their patents than comes from this conservative estimate.

Did Joff Wild not read parts 2b and 2c?

***Separately, Innovation Alliance put out a press release-->

The Innovation Alliance, a coalition of companies seeking to enhance America's innovation environment by improving the quality of patents and protecting the integrity of the U.S. patent system, today applauded the release of a new study that details the negative impact on the U.S. economy that would result from enactment of patent legislation similar to that considered in the last Congress.

The new study: "The Likely Adverse Effects of an Apportionment-Centric System of Patent Damages" is authored by Scott Shane, Ph.D., Professor of Economics at Case Western Reserve University. It was commissioned by the Manufacturing Alliance on Patent Policy.

Dr. Shane's analysis concludes that the adoption of an apportion-based approach to damages for patent infringement would reduce patent value substantially, shrink the value of public companies, decrease investment in R&D, impose downward pressure on manufacturing jobs and compensation, and favor certain industries over others. Specifically, the study detailed several adverse effects, including:

1. Between 51,000 and 298,000 U.S. manufacturing jobs put at risk. 2. Reduction in U.S. patent value of between $34.4 billion and $85.3 billion. 3. Reduction in value of U.S. public companies of between $38.4 billion and $225.4 billion. 4. Reduction in R&D of between $33.9 billion and $66 billion per year. 5. Industries employing fewer people favored over those employing more people.

Despite the significant impact a change in the current patent awards system would have on thousands of U.S. employers and millions of U.S. workers, it is believed that this is the first time the apportionment of damages issue has been studied and the impacts quantified.

"Given the state of our economy, it would be unwise to unnecessarily experiment with our patent system - putting jobs and investment in R&D at risk," said Taraneh Maghamé, Vice President, M&A and Government Relations, Tessera, Inc.

The link begins: The US could replace all its cars and trucks with electric cars powered by wind turbines taking up less than 3 square kilometres – in theory, at least.

Mark Jacobson noted: "Some options that have been proposed are just downright awful. Ethanol-based biofuels will actually cause more harm to human health, wildlife, water supply, and land use than current fossil fuels."

Jack Stripling noted that admitted plagiarist UF professor James Twitchell was suspended for five years without pay, and opted to retire.

See alsohttp://ipbiz.blogspot.com/2008/04/uflorida-prof-admits-plagiarism.html

A different outcome than with Glenn Poshard, plagiarist President of SIU.

***Twitchell reported some instances of his plagiarism to department chair Pamela Gilbert, who did not then report them to misconduct officers at UF.

***UPDATE

Of the comment below, IPBiz thought it had been pretty explicit about the Poshard "inadvertent plagiarism" business. Poshard did plagiarize, as that term is commonly understood, and should have suffered the consequences. Joe Biden did plagiarize in law school at Syracuse (copying five pages of a law review article), and got off very easily. Allison Routman copied fragments of four sentences and "walked the plank."

Biden is Vice-President elect and Poshard is still at SIU. The public does not deem plagiarism a "fatal" offense, at least for some people. Pamela Gilbert didn't seem bothered by plagiarism, either.

In passing, IPBiz ponders whether, by retiring, James Twitchell is permitted to collect his pension, which would likely be more than five years of "no salary."

A separate analysis of Poshard’s dissertation, written by SIU English professor R. Gerald Nelms and released by the university Thursday, called theerrors “minor” and “easily correctable.” He said there should be “high standards” when citing others’ writings, but that “overreaction … could havea chilling effect on scholarship generally.”“The world can withstand a few unprosecuted citation infractions,” Nelms wrote.Stephen Satris, executive director of the Center for Academic Integrity at Clemson University, questioned whether that sends students a bad message.“That seems to contradict the high standards. I think that’s partly what high standards are all about, not overlooking stuff,” Satris said. “The norms don’t seem to have any teeth if big shots can skirt around them and get away with them.”

***Comment to the SIUDE on 1 Feb 09-->

Of --Adkins, who serves as director of the University Press, told the Chronicle that R. Gerald Nelms, a recognized plagiarism expert and associate professor of English at SIUC, “most likely” wrote SIU’s version. --, can Mr. Adkins, or anybody else, explain what makes Professor Nelms "a recognized plagiarism expert"? In his analysis of Poshard's Ph.D. thesis, Nelms missed obvious plagiarism (and poor thinking) at page 54 of the thesis. This failure does not suggest the work of an expert. Separately, it is true that plagiarism (copying without citing) is distinct from copyright infringement. For example, one can plagiarize Shakespeare without violating copyright. Also, in the US, copyright inheres once words are fixed in a tangible medium.

NJBiz reports: Biotechnology firm Advaxis Inc. of North Brunswick, New Jersey announced on Jan. 14 victory in a patent challenge in the European Patent Court in Munich, Germany, over its antigen, called Lovaxin C. In what it claimed is a final ruling that cannot be reversed in the European Union, the court reversed a patent challenge from Anza Therapeutics Inc., a biotechnology firm in Concord, Calif.

Wednesday, January 14, 2009

FDANews reported on 14 Jan 09: Medicis Pharmaceutical has received notice that Barr Laboratories has filed an ANDA to market a generic version of Medicis’ once-daily, oral acne treatment Solodyn — a drug that is the subject of a citizen petition.

With Pfizer's Lipitor facing generic competition on or about Nov. 30, 2011, Pfizer announced on 13 Jan 09 the lay-off of up to 800 research scientists and expects to reduce its research staff by 5 percent to 8 percent this year.

The WSJ reports of Hewlett-Packard [H-P, a member of the Coalition for Patent Fairness]:

H-P has been focusing on "the quality of the patents that we seek, as opposed to the quantity," Mr. Light said. As a result, he added, H-P is seeking broad patents that relate directly to its main businesses, avoiding the costs of filing patents that may relate to more specific processes.

WSJ also mentioned Carly Fiorina:

H-P's current strategy is a departure from the approach under former CEO Carly Fiorina, who tried to boost the company's profile as an innovator, said Rich Doherty, an analyst the The Envisioneering Group who follows patent filings. Mr. Hurd, in contrast, seems more focused on shorter-term financial results, he said. He also said H-P seems to be keeping secret certain innovations, especially in its services division, rather than filing patents. "They've turned the ratio of public patents to private proprietary advantage," he said.

Fiorina, who pushed "invention" at H-P was ousted for not innovating, and separately was involved in the H-P "pretexting" scandal.

Separately, WSJ noted IBM was, once again, at the top of the issued patent list at the USPTO:

In 2008, International Business Machines Corp. generated more U.S. patents than any other company, according to data from the U.S. Patent and Trademark Office compiled by research firm IFI Patent Intelligence. IBM was granted 4,186 patents last year, IFI said, up from 3,125 in 2007. It was the 16th consecutive year that IBM led the patent pack.

However, author JUSTIN SCHECK did not mention some of the kinds of patents IBM obtains, such as the "airplane toilet queue" patent. Of more recent vintage, note IBM's US 7,475,086 (related to application Ser. No. 11/421,123), titled Method of automatically removing leading and trailing space characters from data being entered into a database system, first claim: A computer implemented method of automatically removing space characters from data being entered into a database system comprising: creating a table through which data is to be entered into the database system, the table having at least one column; indicating upon creation of the table whether leading and trailing space characters from data being entered into the at least one column are to be removed; enabling a user to issue an insert command in order to enter the data into the at least one column; determining, in response to receiving the insert command, whether there is an indication associated with the at least one column that leading and trailing space characters from the data being entered into the at least one column are to be removed, removing leading and trailing space characters from the data being entered into the at least one column if it is determined that there is an indication that leading and trailing space characters from the data being entered into the at least one column are to be removed; leaving leading and trailing space characters from the data being entered into the at least one column if it is determined that there is not an indication that leading and trailing space characters from the data being entered into the at least one column are to be removed; and entering the data into the at least one column.

Tuesday, January 13, 2009

Note: Monday, January 19, 2009, and Tuesday, January 20, 2009, are each a “Federal holiday within the District of Columbia.” See MPEP 710.05 and TMEP 308. Thus, any action or fee due on these days will be considered timely if the action is taken, or the fee paid, on the next succeeding business day on which the USPTO is open, that is, Wednesday, January 21, 2009.

Acting en banc, the court today vacated the September 20, 2007, judgment in this case, and the panel’s original opinion, which is reported at 499 F.3d 1365 (Fed. Cir. 2007), was withdrawn. The en banc court reassigned the opinion to the panel for revision.

The en banc order has a dissent written by Judge Moore, joined by Judges Newman and Rader.

The decision continues:

We do not reach the Board’s obviousness rejection of the independent claims under § 103. We conclude that Comiskey’s independent claims 1 and 32 and most of their dependent claims are unpatentable subject matter under 35 U.S.C. § 101. With respect to independent claims 17 and 46 (and dependent claims 18-29, 31, 47-57, and 59) and dependent claims 15, 30, 44, and 58, we remand to the PTO to consider the § 101 question in the first instance.

We do not reach the ground relied on by the Board below—that the claims were unpatentable as obvious over Ginter in view of Walker, Perry, and “Arbitration Fee Schedule”—because we conclude that many of the claims are “barred at the threshold by § 101.” Diamond v. Diehr, 450 U.S. 175, 188 (1981).

Chenery is cited:

Over sixty years ago in Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80 (1943), the Supreme Court made clear that a reviewing court can (and should) affirm an agency decision on a legal ground not relied on by the agency if there is no issue of fact, policy, or agency expertise.

Business method patents come up-->

Comiskey’s application may be viewed as falling within the general category of “business method” patents.

(...)The prohibition against the patenting of abstract ideas has two distinct (though related) aspects. First, when an abstract concept has no claimed practical application, it is not patentable. The Supreme Court has held that “[a]n idea of itself is not patentable.” Rubber-Tip Pencil, 87 U.S. at 507 (emphasis added).

(...)Second, the abstract concept may have a practical application. The Supreme Court has reviewed process patents reciting algorithms or abstract concepts in claims directed to industrial processes.

(...)However, mental processes—or processes of human thinking—standing alone are not patentable even if they have practical application.

(...)Comiskey has conceded that these claims do not require a machine, and these claims evidently do not describe a process of manufacture or a process for the alteration of a composition of matter. Comiskey’s independent claims 1 and 32 claim the mental process of resolving a legal dispute between two parties by the decision of a human arbitrator.

(...)Thus, like the claims that the Supreme Court found unpatentable in Benson and Flook and the claims found unpatentable in our own cases, Comiskey’s independent claims 1 and 32 seek to patent the use of human intelligence in and of itself. Like the efforts to patent “a novel way of conducting auctions” which Schrader, 22 F.3d at 291, found to be directed to an abstract idea itself rather than a statutory category, Comiskey’s independent claims 1 and 32 describe an allegedly novel way of requiring and conducting arbitration and are unpatentable.

The dissent to the order notes:

This case goes to the fundamental role of the appellate court—to review the decision appealed. In this case, the court declined to address the only ground for rejecting the patent claims decided below and appealed by the parties (§ 103). Instead, the court reached out to decide a new ground of rejection (§ 101), raised sua sponte by the court. The court evaluated both the process and machine claims under its chosen ground, § 101, concluding that the process claims were not directed to patentable subject matter, but that the machine claims, in light of our well-established precedent were directed to patentable subject matter.

Footnote 3 mentioned Bilski:

We recognized in our en banc decision in Bilski that “although our decision in Comiskey may be misread by some as requiring in every case that the examiner conduct a § 101 analysis before assessing any other issue of patentability, we did not so hold.” In re Bilski, No. 2007-1130, slip op. at 4-5 n.1 (Fed. Cir. Oct. 30, 2008) (en banc). In fact, the Supreme Court itself declined to address complicated § 101 issues even where fully briefed and argued because the obviousness rejection (also fully briefed and argued) provided an easier ground upon which to affirm

Judge Newman had a separate dissent to the order, which began:

Reconsideration of this appeal was stayed while the en banc court decided In re Bilski, 545 F.3d 943 (Fed. Cir. 2008), and although the original Comiskey opinion was withdrawn because it was producing “misunderstanding,” id. at 960, the revised opinion does not clarify, changes no result, adds no analysis, but simply deletes its reasoning, leaving silence rather than understanding. The court continues to present a broad and ill-defined exclusion of “business methods” from access to the patent system, an exclusion that is poorly adapted to today’s new and creative modalities of data handling and knowledge utilization. I must protest this further contribution to the uncertainty that this court’s decisions are producing.

(...)If the replacement of “process” with “system” or “module” in the Comiskey claims suffices to provide Bilski’s “meaningful limits” under Section 101, we should be explicit. Instead, the panel chose to delete its statement that the “routine addition of modern electronics” to a patent-ineligible invention is “prima facie obvious.” Comiskey, 499 F.3d at 1380, and also deleted the citation to KSR v. Teleflex, 550 U.S. 398 (2007) from which this statement came, confounding the difference between unpatentability under Section 103 and ineligibility under Section 101. Instead of the half-decision of the panel, the issue of Section 101 should either be remanded as to all claims, or decided as to all claims. And in all events, the court should decide the Section 103 ground on which the appeal was taken.

As I discussed in connection with the Bilski decision, 545 F.3d at 985-89, serious inaccuracies are embodied in the statements that the Statute of Monopolies of 1623 was intended by the Framers as a limit to process patents under Article I, §8 of the United States Constitution. The panel now imports this theory into a decision of the court, ruling that “the Framers consciously acted to bar Congress from granting letters patent in particular types of business.” Op. at 15. Thus the panel holds that the Statute of Monopolies forbids United States patents on business method inventions, and that the Framers so intended.

Judge Newman concludes:

The artificial distinction drawn by the Comiskey panel adds neither strength nor rigor to the pragmatic needs of economic growth, and simply serves as a further disincentive to innovation. Thus I must, respectfully, dissent from the court’s denial of the petition for rehearing en banc.

More on ArticleOne

ArticleOne has a release on Jan. 13 which includes:

Article One Partners, LLC, a global community working to legitimize the validity of patents, today announced two new Patent Studies driven by litigation and dispute surrounding Worlds.com and JSA Technologies patents. Article One community members – called Advisors – have an opportunity to send in prior art evidence of validity or invalidity for both high profile patents, with the potential to earn up to U.S. $50,000 per study, in addition to premium profit sharing for active participation in the study and community.

"Patent disputes are moving to the courtroom in record numbers, with the cost of litigation typically passed along to the public – in this case impacting those who participate in virtual worlds and online gaming, and students using the campus ID card credit systems provided by their schools," said Cheryl Milone, founder of Article One Partners. "By presenting the patented information to our community for peer review, we focus a global effort upon the core issue of validity for the patents at issue. If a comprehensive search does not uncover prior art evidence, the patent is intrinsically strengthened. If evidence is discovered and presented, the market can take action to reduce unfair monopolies and overly broad patents. In both cases, resolution can be expedited."

An email noted: peer review is certainly a trend of interest with President Elect Obama lauding Peer-to-Patent's approach as what may be the answer for patent reform.

Monday, January 12, 2009

IAM has a post on the departure of John Squires from Goldman Sachs {John Squires has left his position as chief IP counsel of Goldman Sachs to become the joint head of IP at law firm Chadbourne & Park ]

“Halfway through the flight, Mr. Gates closed the book, shut his computer off and we talked. Out of nowhere, he told me that he had recently figured out who his competition was.It was not Apple, Lotus or IBM. He waited a couple of beats. "It's Goldman Sachs."

"No," he said. "I mean the competition for talent. It's all about IQ. You win with IQ. Our only competition for IQ is the top investment banks."

Squires testified in “Patent Reform: The Future of Innovation” (June 2007) on behalf of S.1145.

See also Financial Patents: Is the big bang coming? [“Goldman, viewed by many as a patent leader on Wall Street, has hundreds of patent applications in the pipeline and has received patent rights on a couple of dozen products and systems, according to its chief patent officer, John Squires. He joined Goldman in the new position in 2000 after being a patent lawyer with Allied Signal.”]

Squires founded Goldman Sachs' patent practice nine years ago, and he has been credited with giving the practice a more global focus. That includes taking on international issues such as branding and trademarks, operational and technology matters, and licensing transactions and due diligence. "John is a high-profile intellectual property lawyer who will play a vital part in one of the firm's major objectives, which is to continue to grow an international, full-service intellectual property practice," said Chadbourne & Parke Managing Partner Charles K. O'Neill.

Squires has also been involved in a number of public intellectual property initiatives. He has chaired the Securities Industry and Financial Markets Association's intellectual property subcommittee since 2004, and co-authored an examination quality program with the U.S. Patent and Trademark Office. He has also worked with Congress to bring about improvements in U.S. Patent law. Additionally, he has filed several amicus briefs with the U.S. Supreme Court as well as the U.S. Court of Appeals for the Federal Circuit.

[The "examination quality" program relates to peer-to-patent.]

Of Goldman Sachs on investments, IPBiz had noted:

Goldman Sachs owns a minority stake [in Santelisa Vale}, as does Brazil's development bank BNDESPar.[probably not the highest IQ move]

The former head of Goldman is New Jersey's present guv, Corzine, who, when not speeding on the Garden StateParkway, completed misunderstood the Jersey landscape on stem cells. [See http://ipbiz.blogspot.com/2007/11/new-jersey-voters-reject-bond-measure.html]

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.